Citation Nr: 0823844
Decision Date: 07/17/08 Archive Date: 07/30/08
DOCKET NO. 00-22 833 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Kelli A. Kordich, Counsel
INTRODUCTION
The veteran served on active duty from March 1972 to
September 1977. The veteran died in March 1988 and the
appellant is the veteran's widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2000 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina, which determined that the
appellant had not submitted new and material evidence to
reopen her claim of entitlement to service connection for the
cause of the veteran's death.
By a decision dated March 2004, the Board found that the
appellant had submitted new and material evidence and the
claim for entitlement to service connection for the cause of
the veteran's death was reopened.
The appellant presented testimony at a Travel Board hearing
chaired by the undersigned Veterans Law Judge in April 2003.
A transcript of the hearing is associated with the veteran's
claims folders.
FINDINGS OF FACT
1. The veteran's Certificate of Death indicates he died in
March 1988; the immediate cause of death was listed as carbon
monoxide poisoning, due to or as a consequence of a trailer
fire.
2. During the veteran's lifetime, service connection was
established for leucoma and traumatic cataract, right eye,
evaluated as 30 percent disabling; traumatic arthritis of the
right hip, evaluated as 30 percent disabling; and
osteoporosis of the right knee, evaluated as 10 percent
disabling. Service connection was also in effect for the
following disorders each disorder evaluated as non
compensable: residuals of old fracture of left inferior
ramus; depressive neurosis; thoracotomy scar; fracture of the
ribs; high frequency sensorineural hearing loss; and
borderline hypertension.
3. A service-connected disability was not the immediate or
underlying cause of the veteran's death, nor did a service-
connected disability contribute substantially or materially
to cause death, nor did a service-connected disability
combine to cause death or aid or lend assistance to the
production of death.
CONCLUSION OF LAW
A disability incurred in or aggravated by service did not
cause or contribute to the veteran's death. 38 U.S.C.A. §§
1101, 1110, 1112, 1310, 5103, 5103A, 5107 (West 2002 & Supp.
2007); 38 C.F.R. §§ 3.303, 3.312, 3.316 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A service-connected disorder is one that was incurred in or
aggravated by active service, or one for which there exists a
rebuttable presumption of service incurrence if manifested to
the required degree within a prescribed period from the
veteran's separation from active duty. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
In order to prevail on the issue of entitlement to service
connection for the cause of the veteran's death, the evidence
must show that a disability incurred in or aggravated by
service caused or contributed substantially or materially to
cause the veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. §
3.312. The service-connected disability will be considered
the principal (primary) cause of death when such disability,
singly or jointly with some other condition, was the
immediate or underlying cause of death or was etiologically
related thereto. 38 C.F.R. § 3.312(b).
A contributory cause of death is inherently one not related
to the principal cause. It must be shown that it contributed
substantially or materially, that it combined to cause death
that it aided or assisted in the production of death. It is
not sufficient to show that it causally shared in producing
death, but rather it must be shown that there was a causal
connection. 38 C.F.R. § 3.312(c).
The veteran died in March 1988. The cause of death listed on
the death certificate was carbon monoxide inhalation from a
mobile home fire. The appellant contends that the veteran's
death was due, in part, to his service-connected disabilities
from a right eye disorder, traumatic arthritis of the right
hip, and osteoporosis of the right knee.
A March 1988 report from the Wayne County Sheriff's
Department indicates that the veteran died from carbon
monoxide poisoning. It was determined that he had a blood
alcohol level of 260 which greatly diminished the veteran's
chance of awakening early enough in the stage of the fire to
survive. The report did not attribute any other disability
as a contributing factor to the cause of the veteran's death.
The report also noted that another individual perished in the
fire with the veteran and that his blood alcohol level was
180.
Statements from [redacted], dated March 1999 and June
2000 indicate that he was an arson investigator for the
Sheriff's Department of Goldsboro, North Carolina and
indicated the veteran and a friend perished in a fire in a
trailer due to a heater being too close to a couch resulting
in a fire. Mr. [redacted] statement stated that the veteran
became trapped in the fire due to disorientation secondary to
smoke. Mr. [redacted] indicated the veteran had a 180 blood
alcohol level and along with his disability of his hip, right
knee, and vision problems could have hindered him from
exiting the home in his opinion.
At her April 2003 Travel Board hearing, the appellant
testified that the veteran's mobility was awful, as far as
walking and seeing. She indicated he was blind in the right
eye and had a lung problem. The appellant indicated that the
former arson investigator made a statement that the veteran's
service connected disabilities aided in the prevention of him
evacuating the home. The appellant testified that she never
told the arson investigator about her husband's service
connected disabilities and must have gotten that information
from the autopsy report; however, it was noted in the hearing
that the death certificate indicated that no autopsy was
performed.
The Board notes that letters were sent to Mr. [redacted] by the RO
in May and July 2001 to two separate addresses in an attempt
to ascertain his credentials; however, the RO received no
replies.
Social Security Administration records indicate that the
veteran was receiving disability benefits and was noted as
disabled in October 1977. The primary diagnosis was aseptic
necrosis of the right hip and dysthmic disorder was noted
under "other". Records showed the veteran had some
impairment in his right hip in ambulation and he was blind in
his right eye. There was no indication if his right knee
disability caused any impairment.
VA treatment records received in July 2005 indicated the
veteran was admitted to the Medical Center in September 1985
for anxiety reaction with moderate depression, and
symptomatic excessive alcoholism and reaction to anxiety
reaction with depression. The veteran requested help for his
alcohol problem.
The RO tried again to contact Mr. [redacted] in January 2007, but
no response was forthcoming. In addition, the RO contacted
the Wayne County Sheriff's Department and a response in
October 2005 indicated that Mr. [redacted] no longer worked there.
A VA Memorandum from the VA Outpatient Clinic dated in
December 2007 noted that the reviewing physician, following
review of the claims file, stated that the veteran was
apparently able to ambulate with no documentation of record
to indicate that he was not able to ambulate. He saw no
evidence that would indicate that the veteran's service
connected problems would have materially contributed to or
caused the veteran's demise.
The appellant contends that the veteran's death was due, in
part, to his service-connected disabilities. In essence she
contends that the veteran's service connected disabilities
hindered his escape from the burning mobile home. The death
certificate listed the cause of death as carbon monoxide
poisoning. A report from the Wayne County Sheriff's
Department indicates that the veteran had a blood alcohol
level of 260 which greatly diminished his chance of awakening
early enough in the stage of the fire to survive. The report
did not attribute any other disability as a contributing
factor to the cause of the veteran's death. There is also no
mention of the veteran's service connected disabilities in
this report. In addition, the VA physician's Memorandum
dated December 2007 saw no evidence that would indicate that
the veteran's service connected problems would have
materially contributed to or caused the veteran's demise.
Although Mr. [redacted] indicated that the veteran's blood alcohol
level was 180 and his service connected disabilities could
have hindered him from exiting the home, the Sheriff's report
noted that the other victim's blood alcohol level was 180 and
the veteran's was 260. In addition, the Sheriff's report
makes no mention of the veteran's service connected
disabilities. The Board notes that the RO made several
attempts to contact Mr. [redacted] in order to confirm his
credentials, with no response; and there is no evidence that
Mr. [redacted] has the necessary medical skills and training to
offer opinions on medical questions. Espiritu v. Derwinski,
2 Vet. App. 492, 494-5 (1992). Therefore the Board finds the
statements by Mr. [redacted] speculative in nature and of limited
probative value.
There is no doubt of the sincerity of the appellant's beliefs
and the Board empathizes with her loss; however, it must be
emphasized that there is no medical evidence to support the
contention that the veteran's death was in any way related to
service. As the appellant is not trained in the field of
medicine, she is not competent to offer an opinion regarding
any medical causation leading to the veteran's death.
Espiritu, supra.
In reaching this decision the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellant's claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
Duties to notify and assist
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical evidence or lay evidence that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1),
proper notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that the
claimant is expected to provide. The Board notes that a
"fourth element" of the notice requirement requesting the
claimant to provide any evidence in the claimant's possession
that pertains to the claim was recently removed from the
language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg.
23,353-356 (April 30, 2008). Notice should be provided to a
claimant before the initial unfavorable decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The Board acknowledges that under 38 U.S.C.A. § 5103(a)
notice must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits. In this case, the provisions of 38
U.S.C.A. § 5103(a) were enacted after the appellant received
her rating decision for her reopened claim for service
connection for the cause of the veteran's death, thus making
compliance with the timing requirements of 38 U.S.C.A. § 5103
impossible. Since then, however, the content of the notices
provided to the appellant fully complied with the
requirements of that statute. The appellant has been
afforded a meaningful opportunity to participate in the
adjudication of her claim, to include the opportunity to
present pertinent evidence. Thus any error in the timing was
harmless, the appellant was not prejudiced. Simply put,
there is no evidence any VA error in notifying the appellant
that reasonably affects the fairness of this adjudication.
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998).
In the context of a claim for Dependency and Indemnity
Compensation (DIC) benefits, section 5103(a) notice must
include (1) a statement of the conditions, if any, for which
a veteran was service connected at the time of his or her
death; (2) an explanation of the evidence and information
required to substantiate a DIC claim based on a previously
service-connected condition; and (3) an explanation of the
evidence and information required to substantiate a DIC claim
based on a condition not yet service connected. Hupp v.
Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are
particularized notice obligations with respect to a claim for
DIC benefits, there is no preliminary obligation on the part
of VA to conduct a predecisional adjudication of the claim
prior to providing a section 5103(a)-compliant notice.
In March 2004 and February 2005 letters as well as
supplemental statements of the case, the appellant was
provided with notice of what evidence was needed for her
claim, what VA would do, and what she should do. The Board
notes that, even though the correspondence requested a
response within 30 days, they also expressly notified the
appellant that she had one year to submit the requested
information and/or evidence, in compliance with 38 U.S.C.A. §
5103(b) (evidence must be received by the Secretary within
one year from the date notice is sent). She was not given
the specific notice required by Hupp, supra. Nonetheless,
the March 2004 Board decision and remand contained
information concerning the disabilities for which service
connection was in effect at the time of the veteran's death.
In addition, the appellant testified at a Travel Board
hearing concerning the veteran's service connected
disabilities, so the appellant had actual knowledge of those
disabilities. Moreover, she specifically argued that the
veteran's service-connected disabilities played a role in
causing the veteran's death.
The Board acknowledges that the appellant was not provided
the specific notice required by Dingess v. Nicholson, 19 Vet.
App. 473 (2006) (as the degree of disability and effective
date of the disability are part of a claim for service
connection, VA has a duty to notify claimants of the evidence
needed to prove those parts of the claim). The failure to
provide the specific notice required by Dingess is harmless
in this instance because the appellant's claim for
entitlement to service connection for the cause of the
veteran's death is denied. Matters concerning the disability
and the effective date of an award do not arise here.
Finally, the Board notes that veteran's service medical
records and all other pertinent available records have been
obtained in this case. In addition, appropriate VA medical
opinions were obtained. Neither the appellant nor her
representative has identified any outstanding evidence, to
include medical records that could be obtained to
substantiate the denied claim. The Board is also unaware of
any such outstanding evidence.
In sum, the Board is satisfied that any procedural errors in
the development and consideration of the claim by the
originating agency were not prejudicial to the appellant.
ORDER
Entitlement to service connection for the cause of the
veteran's death is denied.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs